The Appellant submits that some of the factual findings of the learned trial judge do not support his conclusion that there was a fundamental breach of the contract. The test for establishing a fundamental breach was properly enunciated by the learned trial judge at para. 273 of his reasons, citing Syncrude Canada v. Hunter Engineering Co., 1989 CanLII 129 (SCC), [1989] 1 S.C.R. 426 at para. 137: whether the failure of one party to perform a primary obligation has the effect of depriving the other party of substantially the whole benefit which it was the intention of the parties should have been obtained from the contract.
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